A Major Victory for Bhopal Gas Victims

The eagerly awaited judgment in Writ Petition No.50 of 1998 was delivered by the Supreme Court of India on August 09, 2012. The background of this petition has already been explained in detail in the piece titled The Orphans of Bhopalthat was published recently in CounterPunch[1]. The attempt here is to throw light on the significance of this judgment, which has come after such a long delay considering that the Court could have dealt with the matter and passed necessary directions on the same at least two and half decades ago.

Unenviable Past

As explained in the previous piece, through Writ Petition No.11708 of 1985 that was filed on August 01, 1985, Dr.Nishit Vohra and Dr.C.Sathyamala had brought to the attention of the Supreme Court the various problems faced by gas-victims due to lack of proper health-care facilities and the poor state of health-care. Apparently in response to this petition, the Government of India on August 08, 1985 set up the “Scientific Commission for Continuing Studies on Effects of Bhopal Gas Leakage on Life Systems” headed by Dr.C.R. Krishna Murti (ex-Director of Indian Institute of Toxicology Research). The Scientific Commission submitted its report to the Central Government in July 1987. While the Commission was denied extension and was disbanded immediately thereafter, the Report was not made public until about a decade later. Commenting on the Report, which Petitioners Nos.1 & 3 had brought to the attention of the Court, the Court has observed, in para 3 of the judgment, which was written by Justice Swatanter Kumar on behalf of the three-member bench headed by Chief Justice S.H.Kapadia, as follows:

“Various steps were recommended by the Scientific Commission, from time to time, to tackle the two main aspects of this disaster. Firstly, health care of the affected victims and secondly, research work with the object to deal with the acute problems arising from this disaster on the one hand and to suggest preventive steps on the other.”[2]

If these recommendations had been made to the Government of India in 1987, why did the Government fail to act on the said recommendations – especially relating to research work – for the last twenty-five years? Unfortunately, this question has been left unanswered and the Government has not been taken to task for its gross negligence in this regard. Independently, in response to Writ Petition No.11708 of 1985, the Supreme Court on November 04, 1985 had set up a Committee of seven experts to make recommendations regarding medical relief and other related matters of Bhopal gas victims. The Committee consisted of three representatives from the ICMR, two from the Government and two representatives of gas-victims, namely Dr.Anil Sadgopal and Dr.Sujit Das. Since the Committee could not come to a consensus, the minority members, Dr.Sadgopal and Dr.Das, submitted several Reports during 1987-88 and sought directions from the Court. Unfortunately, the well-considered recommendations made in the“Final Report on Medical Relief and Rehabilitation of Bhopal Gas Victims”, which they had submitted to the Court on August 30, 1988, were ignored by the Court at that time. [However, it is significant that after an avoidable gap of twenty-four years most of the recommendation made by Dr.Sadgopal and Dr.Das in their Final Report have been accepted by the Court in its verdict on the present writ petition.]

Settlement and After

Subsequently, following the unjust settlement of February 14/15, 1989, concerted pressure was mounted on the ICMR by organizations representing the gas-victims (BGPMUS, BGIA and BGPSSS*) to make public the results of the various research studies that ICMR had undertaken. By the time some information from ICMR began to trickle down, the ICMR was already in the process of abandoning all disaster-related research, which it finally did in 1994 (that too contrary to the explicit direction of the Supreme Court in the judgment dated October 03, 1991, as was pointed out in the earlier article). Meanwhile, considerable efforts were made by BGPMUS, BGIA and BGPSSS to dissuade ICMR from betraying the cause of the gas-victims. With the help of the International Institute of Concern for Public Health (Canada) and the Permanent Peoples Tribunal (founded by Bertrand Russell and based in Italy) they succeeded in constituting a 15-member International Medical Commission on Bhopal (IMCB) in 1993 composed of experts from 12 countries, with Dr.Rosalie Bertell and Dr.Gianni Tognoni as Co-Chairs, to assess the current health status of the gas-victims and to make necessary recommendations. The IMCB, which held its sitting in Bhopal in January 1994, later interacted with representatives of the ICMR as well. The IMCB also made many notable recommendations, which were brought to the attention of the Supreme Court by BGPMUS, BGIA and BGPSSS during 1995-1998 while the Court was dealing with another health-related matter that resulted in the expansion of health infrastructure for gas-victims in the form of the Bhopal Memorial Hospital and Research Centre (BMHRC). However, IMCB’s recommendations too were largely disregarded by the Court in 1998 [although effectively several of those recommendations have been incorporated in the present judgment].

Since all attempts at persuading the ICMR to restart disaster-related medical research had failed, BGPMUS, BGIA and BGPSSS had no option other than to file the present writ petition (No.50 of 1998) to seek various reliefs. After a lot of effort, the petitioners did manage to convince the Court about the need for setting up two committees – the Advisory Committee and the Monitoring Committee – to assist the Court in the matter. The committees, which were set up in September 2004, were to make necessary recommendations to the Court regarding research, documentation, health infrastructure, health services, grievances of gas-victims, etc. The committees consisted of representatives of gas-victims, the ICMR and the State Government. Although the committees made several recommendations and the Court gave necessary directions, nothing really seemed to change because the ICMR and the State Government effectively chose to ignore those directions. Since there was no real justification as to why this matter relating to health needs of the gas-victims should have remained pending before the Court indefinitely (for 14 long years), the petitioners pleaded with the Court to speedily dispose of the matter.

Fast Track

Fortunately, Chief Justice S.H.Kapadia, Justice A.K.Patnaik and Justice Swatanter Kumar responded to the pleas of the petitioners and decided to expedite the matter. Under the Court’s direction, final submissions were made and hearing in the matter was concluded on April 27, 2012. It is heartening to see that Justice Swatanter Kumar, who wrote the judgment, took due note of the detailed letter written by Dr.C.Sathyamala (Co-Convener of BGPSSS & Member, Advisory Committee) to the ICMR on January 7, 2012, and the various affidavits filed by BGPMUS & BGPSSS in the case, which had summarized the issues confronting the gas-victims. Justice Swatanter Kumar’s observations, which are stated in para 16 of the judgment, are as follows:

“One of the petitioners in the main petition filed an application being IA No.14 of 2012, primarily relying upon the letter written by Dr.Sathyamala, (Member, Advisory Committee) to Dr.P.M.Bhargava, (Member, Advisory Committee and Chairperson of the Task Force [set up by ICMR])…. Petitioner Nos.1 and 3 have filed IA No.16 of 2012 wherein they have prayed for issuance of certain directions. In this application, it has been stated that the Monitoring Committee in its reports dated 10th June, 2005, 31st October, 2005, 12th July, 2006, 20th December 2006, 7th August, 2007 and 27th May, 2008 have consistently recommended computerization of the hospital records and issuance of ‘health booklets’ to the gas victims. It is averred that recommendations of the Advisory Committee have not been complied with by the State Government, the ICMR and even the Union of India. They have also made a suggestion for issuance of ‘smart cards’ to the gas affected victims besides issuance of proper health booklets. The NIREH, as established by the ICMR, though was a welcome step, according to these applicants much is desired of the functioning of NIREH. The allegation is that the decision makers at the ICMR are doing everything on their part to ensure that the crucial issues affecting the life and health of the gas victims remain unaddressed at a macro level. All the concentration presently is on building the infrastructure for the NIREH. On this premise, the applicants have prayed that the orders of the Court should be complied with by the State of Madhya Pradesh as well as the ICMR for issuance of ‘health booklets’ and ‘smart cards’ to the affected persons. They also prayed for adoption of a common referral system among various medical units under BMHRC and under the BGTRRD so that the gas victims are referred to the appropriate centres for proper diagnosis, investigation and treatment in terms of the nature and degree of injury suffered by each one of them and also in terms of therapeutic requirements. They also prayed that NIREH be directed to set up completely computerized and centrally networked Central Registry, to maintain proper medical records of all gas victims, to streamline and intensify epidemiological studies among the gas-affected population and to prepare treatment protocol for treating each category of ailment that the gas victims are suffering, such as respiratory diseases, eye-related diseases, gastro-intestinal diseases, neurological diseases, renal failure, urological problems, gynaecological problems, mental disorders, etc.”[3]

In addition, the petitioners had supported the Monitoring Committee’s plea for empowering it and also sought to draw the attention of the Court to the pre-disaster problem confronting the gas-victims in the form of environmental contamination – an abhorrent legacy resulting from the highly irresponsible manner in which UCC had operated its Bhopal plant.

The Judgment

Taking all these factors into consideration, the Court has passed a comprehensive judgment with clear directions to the Government of India, the Government of Madhya Pradesh, and the ICMR to comply with a variety of tasks. The most notable directions of the Court that have far-reaching implications can be summarized as follows:

* The ICMR as well as the NIREH have been directed “to ensure that research work is carried on with exactitude and expeditiousness and further to ensure disbursement of its complete benefit to the gas victims”.

* The Monitoring Committee has been directed to operationalize medical surveillance; workout modalities for computerization of medical records; and to ensure that ‘health booklets’ and ‘smart cards’ are provided to each gas victim.

* The Monitoring Committee has been granted complete jurisdiction to oversee the proper functioning of BMHRC and other BGTRRD hospitals, with regard to problems relatable to gas-victims.

* The Monitoring Committee, with the aid of the Advisory Committee, NIREH and the specialized doctors of BMHRC, has been directed to prepare a standardized protocol for treating each category of ailment that the gas victims may be suffering from and also to scientifically categorize patients and injuries.

* The State Government and the Monitoring Committee have been directed to evolve a methodology of common referral system amongst the various medical units under the BMHRC and the BGTRRD to ensure that the gas victims are referred to appropriate centres for proper diagnosis and treatment in terms of the nature and degree of injury suffered by each one of them.

* The concerned authorities have been directed to take appropriate steps in all respects not only to fill up vacancies of doctors and supporting staff but also to provide such infrastructure and facilities so that doctors are not compelled to or prefer to resign from employment due to inadequate facilities.

* The Government of India and the Government of Madhya Pradesh have been directed to take immediate steps for disposal of the toxic waste lying in and around the Union Carbide factory, Bhopal, on the recommendations of the Monitoring Committee, Advisory Committee and the NIREH within the next six months.

A major dampener, however, is the direction of the Court to transfer the matter to the MP High Court for dealing with issues related to execution of this judgment. That is because, in the absence of requisite infrastructural support, it would place additional burden on the victims to pursue the case there. It may also be noted that it was with the intention of speedily disposing of the case that the Supreme Court in 1989 had ordered the settlement. The decision to send the case to the High Court might mean delaying the entire process further because there is every possibility that the matter might again revert to the Supreme Court as an appeal.

Implications

The judgment is a damning indictment of the Government of India, the Government of Madhya Pradesh and the ICMR. Eighteen years after it had abandoned all disaster-related medical research, ICMR has been compelled to restart such research to the great relief of the gas-victims. Moreover, ICMR’s attempt to limit research work at its Bhopal centre (NIREH) to just environmental issues too has been quashed. However, no questions have been asked as to why such research was abandoned in the first place nor has anyone been taken to task for such an unpardonable act.

The failure to place all gas-victims under medical surveillance from the very beginning was yet another serious lapse. While several attempts at computerization, issuance of ‘health-booklets’, etc., were ostensibly made earlier, the matter was never pursued seriously either by the ICMR or the State Government. The failure to obtain health-booklets with complete medical record has robbed a large number of seriously injured gas-victims of adequate compensation because of their inability to prove before the Claim-Courts the degree of injury they are suffering from in the absence of requisite documents. Hopefully, the implied threat of punitive action against erring officials in the event of default in upkeep of records should elicit the desired result.

The urgent need for standardized protocol in treating each category of ailment has been recognized. The IMCB had earlier noted that, “therapies prescribed are aimed at symptomatic relief rather than long term amelioration of a chronic disease process.” Invariably gas-victims were over-drugged through a lot of irrational drugs (including unnecessary prescriptions and hazardous drugs banned in other countries) with little impact on ameliorating the ailment, let alone curing it. Some of those drugs, while providing temporary relief, may in fact have had contradictory effect in the long run. Also, no efforts were made to categorize patients on the basis of type and gravity of injuries. As a result, even after 28 years, there is no data currently available about the number of patients under different types of ailments. Direction in this regard will go a long way in addressing these problems.

Some of the crucial departments, especially at BMHRC, have been closed down due to lack of specialists. Recruiting specialists was a problem due to low pay package and poor upkeep or absence of many essential medical-equipments. Hopefully, at least now appropriate steps will be taken to remedy these problems. Similarly, the direction to speedily clean up the contaminated environment in and around the Carbide factory is very welcome. However, in the absence of a proper study to estimate the actual extent and types of contamination, it is doubtful if the site could be remediated within the next six months.

Nonetheless, it is a huge relief to the gas-victims that the Supreme Court has decided to pass a comprehensive judgment to ensure that all necessary medical relief would be provided to the gas-victims despite the long delay. It is the fervent hope of the gas-victims that the Central and State governments will execute these directions “expeditiously and without demur and default” as the Court has decreed.

N.D. Jayaprakash is the Joint Secretary of the Delhi Science Forum and Co-Convener of the BGPSSS, Delhi.

*BGPMUS (Bhopal Gas Peedith Mahila Udyog Sanghathan)an organization of gas-victims, which was founded in 1986.

BGIA (Bhopal Group for Information and Action), which was founded in 1987

BGPSSS (Bhopal Gas Peedith Sangharsh Sahayog Samiti) – a coalition of over 30 all-India and Delhi-based organizations of workers, scientists, teachers, lawyers, artists, women, youth, students, etc., and concerned individuals, which was founded in 1989 to support the cause of the gas-victims.]